Facts: St George Health & Racquetball Associates (defendant) operates the Eastern Athletic Club in Brooklyn. In May 2009 Rosenblatt (plaintiff), aged 72 years, attended a ‘body sculpting’ class at the club. The instructor (a substitute filling in for the regular instructor) gave each of the participants an exercise ball to sit on. The plaintiff had not previously used an exercise ball. When she sat on it, it rolled, causing her to fall and suffer injury.

The plaintiff brought proceedings against the club on the basis that it had negligently failed to train, supervise or provide for an appropriate instructor. However, she conceded that she was responsible for her own safety in class and that she was able to decide what activities she could safely perform. She also conceded that she had not expressed concern over her lack of experience with an exercise ball nor expressed unwillingness to use it. The defendant responded that any injuries sustained by the plaintiff were caused by her own conduct and that the doctrine of primary assumption of risk barred her from recovering compensation. It sought summary dismissal of the complaint. The Supreme Court declined to dismiss on procedural grounds*. The defendant appealed.

Held: Allowing the appeal and dismissing the proceedings, that the trial court’s refusal of the application on procedural grounds was mistaken. Considering the application to dismiss on the merits –

2. (Sua sponte) The plaintiff, by voluntarily sitting on an exercise ball , assumed the inherent risk that it could roll and cause her to fall. Berry v Bally Total Fitness Corp, 272 AD.2d 354 (2000), considered.

3. It was relevant that the plaintiff was not required to use the exercise ball. Quaere whether the position would be different if the plaintiff had been obliged to use it. Calouri v County of Suffolk, 43 AD.3d 456 (2007)

Judgment

The Court’s judgment is available here. The plaintiff elected not to pursue an appeal.